Decision Date: 08/28/95 Archive Date:
08/28/95
DOCKET NO. 93-22 774 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for the residuals of a
fracture of the left great toe.
2. Whether new and material evidence has been submitted to
reopen a claim of service connection for a deviated nasal
septum.
3. Whether new and material evidence has been submitted to
reopen a claim of service connection for a left inguinal
hernia.
4. Entitlement to a rating in excess of 10 percent for the
residuals of a fracture of the right great toe with
arthrodesis.
5. Entitlement to a rating in excess of 10 percent for the
residuals of a hemorrhoidectomy.
6. Entitlement to a compensable evaluation for a left
varicocele.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
Harold A. Beach, Counsel
INTRODUCTION
The veteran, who is the appellant in this case, served on
active duty from April 1942 to December 1945.
In January 1950, the Veterans Administration (now the
Department of Veterans Affairs, hereinafter VA) Regional
Office (RO) in Providence, Rhode Island denied entitlement
to service connection for the residuals of a fracture of the
left fifth metatarsal. The veteran was notified of that
decision, as well as his appellate rights; however, he did
not initiate an appeal.
In April and June 1990, the RO in St. Petersburg, Florida
refused to reopen the claim denied in 1950 and also denied
entitlement to service connection for a right foot bunion, a
deviated nasal septum, a left indirect inguinal hernia, a
left varicocele, and the residuals of surgery for a
redundant prepuce. The veteran was notified of those
decisions, as well as his appellate rights; however, he did
not perfect an appeal.
In January 1992, the veteran requested that his claims for
service connection for a right foot bunion, a deviated nasal
septum, a left indirect inguinal hernia, and a left
varicocele be reopened. He also requested service
connection for the residuals of a fracture of the left great
toe, including arthritis, as well as increased ratings for
the residuals of a fracture of the right great toe and
hemorrhoids.
In May 1992, the RO granted service connection for a left
varicocele and assigned a noncompensable evaluation
effective in January 1992. The RO confirmed and continued
the denials of service connection for a right foot bunion, a
deviated nasal septum, and a left inguinal hernia, noting
that the veteran had not submitted new and material evidence
with which to reopen the claims. It also confirmed and
continued the 10 percent rating for the residuals of a
fractured right great toe with degenerative changes; the 10
percent rating for the residuals of a hemorrhoidectomy with
a slight loss of anal control; and a noncompensable
evaluation for the postoperative residuals of a fissure in
ano.
In his notice of disagreement, received in July 1992, the
veteran disagreed with the decisions relating to a left
inguinal hernia, a deviated nasal septum, a right foot
bunion, and the residuals of a fracture of the left great
toe. He also disagreed with the ratings for the residuals
of a fracture of the right great toe, the residuals of a
hemorrhoidectomy, and the left varicocele. During a hearing
at the RO in February 1993, the veteran withdrew the claim
for service connection for a right foot bunion. The
remaining issues became the subject of the current appeal.
CONTENTIONS OF APPELLANT ON APPEAL
It is contended by and on behalf of the veteran that a
deviated septum and left inguinal hernia were first
manifested in service and that service connection is,
therefore, warranted. He notes that since April 1990, when
service connection was denied for those disabilities, he has
submitted a statement from Richard S. Arlen, M.D., which
shows that he has received treatment for those disabilities
since 1946. Accordingly, he maintains that Dr. Arlen's
statement is sufficient to reopen his claims of service
connection for a deviated septum and a left inguinal hernia.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims
file. Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the evidence submitted by the
veteran since the RO decision in April 1990 is new and
material for the purpose of reopening claims of service
connection for a deviated septum and a left inguinal hernia.
FINDINGS OF FACT
1. The veteran did not perfect an appeal from an April 1990
decision by the RO which, in part, denied service connection
for a deviated septum and left inguinal hernia.
2. Evidence submitted since the RO's decision in April
1990, including a statement from Richard S. Arlen, M.D., is
not cumulative or redundant, and, when considered with
evidence previously of record, raises the reasonable
possibility of a different outcome.
CONCLUSION OF LAW
New and material evidence having been submitted, the
criteria for reopening claims of service connection for a
deviated septum and left inguinal hernia have been met. 38
U.S.C.A. § 5108 (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service connection can be granted for disability incurred or
aggravated in service. 38 U.S.C.A. § 1110 (West 1991). As
noted above, in April 1990, the RO denied entitlement to
service connection for a deviated nasal septum and for a
left inguinal hernia. Evidence on file at that time
included the veteran's service medical records which, in
October 1945, noted a left indirect inguinal hernia and a
nasal septum deviated to the left. The report of his
December 1945 separation examination, however, was negative
for any complaints or clinical findings of a hernia or
deviated septum. In fact, examinations of his nose and of
his abdomen and pelvis (which included an evaluation for
herniae) were normal. Following service, in November 1949,
VA examination showed a nasal septum deviated to the right,
with about 30 percent obstruction. Thereafter, no further
pertinent finding was made, including on VA examination in
March 1990. Accordingly, the RO denied both claims. The
veteran was notified of that decision, as well as his
appellate rights; however, he did not perfect an appeal.
Therefore, it became final. 38 U.S.C.A. § 7105(c) (West
1991); 38 C.F.R. § 20.1103 (1994).
In order to reopen the claims, the veteran must submit
evidence which is new and material. 38 U.S.C.A. § 5108
(West 1991); 38 C.F.R. § 3.156(a) (1994); Manio v.
Derwinski, 1 Vet.App. 140 (1991). "New" evidence means more
than evidence which was not previously of record. To be
"new", it must be more than merely cumulative . Colvin v.
Derwinski, 1 Vet.App. 171, 174 (1991). To be "material", it
must be relevant to and probative of the issue at hand and
must be of sufficient weight or significance that there is a
reasonable possibility that the new evidence, when viewed in
the context of all of the evidence of record, both old and
new, would change the outcome of the decision. Cox v.
Brown, 5 Vet.App. 95, 98 (1993). If, and only if, the
evidence is found to be new and material, the claim will be
reopened, and a de novo review of the evidence will be
conducted.
In this case, the evidence submitted in support of the
veteran's request to reopen his claims for service
connection for a deviated septum and a left inguinal hernia
includes a March 1992 statement from Richard S. Arlen, M.D.
Dr. Arlen states that he has treated the veteran since 1946
for complaints of pain in both toes. He also notes that the
veteran has other abnormalities, including a left indirect
hernia and a deviated septum. Moreover, a September 1992 VA
hospitalization summary refers to a history of left hernia
surgery in 1973. Such documents are not cumulative of other
evidence already on file. Rather, they reflect continuing
symptomatology after 1949, which was not evident previously.
When viewed in the context of all of the evidence of record
(particularly the notations of a deviated septum and such a
hernia in the service medical records), they provide a
reasonable possibility of changing the outcome of the
decision in April 1990. Accordingly, the Board is of the
opinion that the additional evidence is new and material; as
such, it is sufficient to reopen the veteran's claims of
service connection for a deviated septum and a left inguinal
hernia.
ORDER
The request to reopen claims of service connection for a
deviated septum and a left inguinal hernia is granted.
REMAND
Although Dr. Arlen's statement in March 1992 suggests
continuing symptomatology from a left inguinal hernia and a
deviated septum after service, that suggestion is not
supported by Dr. Arlen's clinical records. Also, there are
no records on file re the surgery in 1973. It does not
appear that they have ever been specifically requested.
In addition to the foregoing, there are a number of other
issues on appeal. Not only does the veteran seek service
connection for a deviated septum and a left indirect
inguinal hernia, he seeks service connection for the
residuals of a left great toe injury, as well as increased
ratings for the service-connected residuals of a fracture of
the right great toe, residuals of a hemorrhoidectomy, and a
left varicocele.
The issue of service connection for the residuals of a left
great toe injury has been certified to the Board as a claim
which has been previously denied and which requires new and
material evidence to reopen. 38 U.S.C.A. § 5108 (West
1991). In fact, prior to the current appeal, that issue had
never been adjudicated. Although the RO denied service
connection for the residuals of a fractured left fifth
metatarsal in January 1950, it did not adjudicate the issue
of service connection for the residuals of a left great toe
injury until May 1992. Accordingly, any decision with
respect to that issue must be considered an original claim
and must be based on a de novo review of the evidence.
In May and June 1993, the veteran raised contentions to the
effect that separate ratings are warranted for the service-
connected residuals of a hemorrhoidectomy and the service-
connected loss of sphincter control. In January 1994, his
representative noted that there were two separate diagnostic
codes governing those disabilities (38 C.F.R. Part 4,
Diagnostic Codes 7332 and 7336), and also requested that
separate ratings be assigned.
In May and June 1993, the veteran also raised contentions to
the effect that a compensable rating is warranted for the
postoperative residuals of a fissure in ano. According to
the Schedule for Rating Disabilities, that disability is to
be rated as impairment of sphincter control. 38 C.F.R. Part
4, Diagnostic Code 7335 (1994).
Neither the issue of separate ratings for the service-
connected residuals of a hemorrhoidectomy and the service-
connected loss of sphincter control, nor the issue of a
compensable rating for fissure in ano has been developed or
certified for appeal; however, they are inextricably
intertwined with the claim for an increased rating for the
residuals of a hemorrhoidectomy with loss of sphincter
control. As such, they must be considered at this point.
Harris v. Derwinski, 1 Vet.App. 180 (1991).
In light of the foregoing, the Board is of the opinion that
further development of the evidence is warranted prior to
further appellate consideration. Accordingly, the case is
REMANDED for the following actions:
1. The RO should contact the veteran and request the names
and addresses of any caregivers who have treated him since
service for the residuals of an injury to the left great
toe, a deviated nasal septum, and/or a left indirect
inguinal hernia. The RO should also request the names and
addresses of any caregivers who have treated the veteran
since 1993 for the service-connected residuals of a
fractured right great toe, the residuals of a
hemorrhoidectomy with loss of sphincter control, fissure in
ano, and/or a left varicocele. Should he be unable to
recall the names and addresses of the specific caregivers,
he should be asked to provide the names and addresses of the
institutions where such care was rendered. Of course, the
dates of such treatment should also be obtained. After
obtaining appropriate authorization, the RO should request
copies of any information not currently on file. Included,
in any case, should be copies of clinical records from
Richard S. Arlen, M.D., dated from 1946 to the present. Dr.
Arlen's last reported address was 1453 Warwick Avenue,
Warwick, Rhode Island 02888. Also obtained should be any
clinical records pertaining to the veteran's 1973 hernia
repair. Any copies so obtained should be associated with
the claims folder. Failures to respond or negative replies
to any request should be noted in writing and also
associated with the claims folder.
2. When the foregoing actions are completed, the RO should
schedule the veteran for such special VA examinations as are
needed to determine the nature and extent of all
disabilities for which service connection has been claimed
and/or to the determine the extent of those service-
connected disabilities for which the veteran seeks increased
ratings. All appropriate tests should be performed, and any
indicated consultations should be scheduled. Should a left
inguinal hernia, deviated septum, and/or a left great toe
disability be identified, the appropriate examiner should
render an opinion as to whether it is at least as likely as
not that the particular disability can be associated with
service. Prior to each examination, the claims folder must
be made available to the appropriate examiner, so that the
relevant medical history may be reviewed.
3. When the requested development has been completed, the
RO should readjudicate the certified issues, including de
novo consideration of the 2 reopened claims. Also, the RO
should adjudicate the issues of separate ratings for the
service-connected residuals of a hemorrhoidectomy and loss
of sphincter control, as well as the claim for a compensable
rating for the postoperative residuals of a fissure in ano.
If either is denied, the veteran should be notified and told
of his appellate rights. Should the RO's actions result in
less than a full grant of benefits sought on any or all of
the foregoing issues, the veteran and his representative
must be furnished a Supplemental Statement of the Case and
afforded an opportunity to respond or appeal, as
appropriate. 38 C.F.R. § 20.302(c) (1994). Thereafter, if
otherwise in order, the case should be returned to the Board
for further appellate action.
By this REMAND, the Board intimates no opinion as to the
final disposition of any issue. The purposes of the REMAND
are to procure clarifying medical information and to ensure
compliance with due process of law. The veteran need take
no action until he is notified.
J. J. SCHULE
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 State. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 38
C.F.R. § 20.1100(b) (1994).
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.
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